As filed with the Securities and Exchange Commission on May 16, 2017
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
Under
the
Securities Act of 1933
Atlas Air Worldwide Holdings, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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13-4146982
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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2000 Westchester Avenue
Purchase, New York 10577
(914)
701-8000
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Adam R. Kokas, Esq.
Executive Vice President, General Counsel, Secretary and Chief Human Resources Officer
Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577
Telephone: (914)
701-8000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Andrew J. Pitts, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth
Avenue
New York, New York 10019
Telephone: (212)
474-1000
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with the dividend or interest reinvestment plans, check the following box: ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box: ☒
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting
company and emerging growth company in Rule
12b-2
of the Exchange Act. (Check one):
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.: ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered(1)(2)
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
Per
Share(1)
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Proposed
Maximum
Aggregate
Offering Price(1)
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Amount of
Registration Fee(1)
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Preferred stock, par value $1.00 per share(3)
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Common stock, par value $0.01 per share(3)
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Debt securities
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Total
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(1)
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An indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices. Separate consideration may
or may not be received for securities that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities. In reliance on and in accordance with Rules 456(b) and 457(r) under the Securities Act of
1933 (the Securities Act), the registrant is deferring payment of all registration fees.
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(2)
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The securities registered under this registration statement may be sold separately, together or as units with other securities registered under this registration statement and may include hybrid securities consisting of
a combination of features of any of the securities listed in the table.
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(3)
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Includes debt securities and shares of preferred stock and common stock as may be issuable upon conversion or redemption of debt securities or preferred stock, as the case may be, registered under this registration
statement.
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PROSPECTUS
ATLAS AIR WORLDWIDE HOLDINGS, INC.
Common Stock
Debt
Securities
Preferred Stock
Atlas Air
Worldwide Holdings, Inc. may, from time to time, offer and sell in one or more offerings:
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Shares of our common stock;
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Unsecured debt securities consisting of senior or subordinated notes and debentures and/or other unsecured evidences of indebtedness in one or more series, which may be convertible into or exchangeable for our common
stock or preferred stock; and
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Shares of preferred stock, in one or more series, which may be convertible or exchangeable for our common stock or debt securities.
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This prospectus describes some of the general terms that may apply to the offering of securities covered by this prospectus. The specific
terms of any securities to be offered, and any other information relating to a specific offering of securities, will be set forth in a post-effective amendment to the registration statement of which this prospectus is a part or in a supplement to
this prospectus, or may be set forth in one or more documents incorporated by reference into this prospectus.
We may offer and sell our
securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. We will deliver this prospectus together with a prospectus supplement setting forth the specific terms of the
securities we are offering and the specific terms of the plan of distribution of such securities.
Our common stock is listed on The
NASDAQ Global Select Market under the ticker symbol AAWW. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
You should read this entire prospectus, the documents that are incorporated by reference into this prospectus and any prospectus supplement
carefully before you invest in our securities.
Investing in
our securities involves certain risks. Please see
Risk Factors
on page 3 and other information included and incorporated by reference in this prospectus, and in any Annual Report on Form
10-K,
Quarterly Report on Form
10-Q
or applicable prospectus supplement, for a discussion of the factors that you should carefully consider before deciding to purchase our
securities.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of
this prospectus is May 16, 2017.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a
shelf registration process. Under this shelf process, we may sell different types of securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide a prospectus supplement and attach it to this prospectus. The prospectus supplement will contain specific information about the nature and terms of the securities being offered at that time. The
prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any applicable prospectus supplement, together with additional information under the headings Incorporation
of Certain Documents By Reference and Where You Can Find More Information and any other information that you may need to make your investment decision.
This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any security other than the securities covered by
this prospectus, nor does it constitute an offer to or solicitation of any person in any jurisdiction in which such offer or solicitation may not lawfully be made.
In this prospectus, references to the company, AAWW, we, us and our are to Atlas
Air Worldwide Holdings, Inc., a Delaware corporation, and its operating subsidiaries, unless the context requires otherwise.
We have
not authorized any underwriter, dealer, salesperson or any other person to provide you with different or additional information to that contained or incorporated by reference in this prospectus or any applicable prospectus supplement or in any free
writing prospectus prepared by us or on our behalf or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus may only be
used where it is legal to sell these securities. You should not assume that the information contained in this prospectus, any applicable prospectus supplement or the documents incorporated by reference into this prospectus is accurate as of any date
other than their respective dates. Our business, financial condition, results of operations and prospects may have changed since those dates.
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ATLAS AIR WORLDWIDE HOLDINGS, INC.
We are a leading global provider of outsourced aircraft and aviation operating services. We operate the worlds largest fleet of 747
freighters and provide customers a broad array of 747, 777, 767, 757 and 737 aircraft for domestic, regional and international cargo and passenger applications. We provide unique value to our customers by giving them access to highly reliable new
production freighters that deliver the lowest unit cost in the marketplace combined with outsourced aircraft operating services that we believe lead the industry in terms of quality and global scale. Our customers include express delivery providers,
e-commerce
retailers, airlines, freight forwarders, the U.S. military and charter brokers. We provide global services with operations in Africa, Asia, Australia, Europe, the Middle East, North America and
South America.
We were incorporated in Delaware in 2000. Our principal executive offices are located at 2000 Westchester Avenue,
Purchase, New York 10577, and our telephone number is (914)
701-8000.
Our website is
www.atlasair.com
. The information on our website is not a part of this prospectus or any applicable prospectus supplement.
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RISK FACTORS
Investing in our securities involves risk. You should carefully consider and evaluate all of the information included and incorporated by
reference in this prospectus and any applicable prospectus supplement, including the risk factors incorporated by reference from our most recent Annual Report on Form
10-K
for the fiscal year ended
December 31, 2016, filed with the SEC on February 23, 2017, as updated by our Quarterly Reports on Form
10-Q
and our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the Exchange Act). The risk factors described in such reports are not the only ones we face. Our operations could also be impaired by additional risks and uncertainties. If any of these risks
and uncertainties develop into actual events, our business, financial condition and results of operations could be materially and adversely affected. Additional risks may be included in a prospectus supplement relating to a particular series or
offering of securities.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains, and any applicable prospectus supplement may contain, statements that may constitute forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of 1995. Those statements are based on managements beliefs, plans, expectations and assumptions, and on information currently available to management.
Generally, the words will, may, should, expect, anticipate, intend, plan, continue, believe, seek, project,
estimate and similar expressions used in this prospectus or in any applicable prospectus supplement that do not relate to historical facts are intended to identify forward-looking statements.
The forward-looking statements in this prospectus or incorporated into this prospectus or in any applicable prospectus supplement by reference
are not representations or guarantees of future performance and involve certain risks, uncertainties and assumptions. Many of such factors are beyond our control and are difficult to predict. As a result, our future actions, financial position,
results of operations and the market price for shares of our common stock could differ materially from those expressed in any forward-looking statements made by us. Readers are therefore cautioned not to place undue reliance on forward-looking
statements. We also do not intend to publicly update any forward-looking statements that may be made from time to time by us or on our behalf, whether as a result of new information, future events or otherwise, except as required by law.
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USE OF PROCEEDS
Unless we specify otherwise in a prospectus supplement, we intend to use the net proceeds from any offering of securities by us for general
corporate purposes.
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RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our consolidated ratio of earnings to fixed charges for each of the periods indicated are as follows:
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For the Quarter
Ended March 31, 2017
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For the Years Ended December 31,
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2016
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2015
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2014
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2013
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2012
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Ratio of Earnings to Fixed Charges
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1.0
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1.7
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1.6
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1.9
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2.6
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For the year ended December 31, 2015, fixed charges exceeded earnings by $15.9 million.
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For purposes of the ratio of earnings to fixed charges, earnings consist of income from continuing operations before income taxes,
distributed income of equity investees and fixed charges, less capitalized interest. Fixed charges consist of interest expense and an estimate of the portions of rentals representative of the interest factor.
We have the authority to issue up to 10,000,000 shares of preferred stock, par value $1.00 per share; however, as of the dates for which
information is presented in the above table, no shares were outstanding, and we did not have a preferred stock dividend obligation. Therefore, the ratio of earnings to fixed charges and preferred stock dividends is equal to the ratio of earnings to
fixed charges.
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DESCRIPTION OF DEBT SECURITIES
The following description of debt securities sets forth certain material terms and provisions of the debt securities to which any prospectus
supplement may relate. The specific terms applicable to a particular issuance of debt securities and any variations from the terms set forth below will be set forth in the applicable prospectus supplement. The debt securities will constitute either
our senior debt securities or our subordinated debt securities.
Senior debt securities will be issued under an indenture (the
senior indenture), dated June 3, 2015, between us and Wilmington Trust, National Association (the senior trustee), which senior indenture is filed as an exhibit to the Registration Statement. Subordinated debt securities
will be issued under a separate indenture (the subordinated indenture) to be entered into between us and a trustee (the subordinated trustee) to be designated prior to the issuance of any such subordinated debt securities,
the form of which subordinated indenture is filed as an exhibit to the Registration Statement. The senior indenture and the subordinated indenture are sometimes collectively referred to herein as the indentures, the senior debt
securities and the subordinated debt securities are sometimes collectively referred to herein as the debt securities, and the senior trustee and the subordinated trustee sometimes collectively referred to herein as the
trustees and individually as the trustee. We and the respective trustee may enter into supplements to the indentures from time to time.
The following is a summary of the material terms and provisions of the indentures and the debt securities. You should refer to the respective
indenture and the applicable prospectus supplement for complete information regarding the terms and provisions of the respective indenture and the debt securities.
General
Neither indenture limits the
amount of debt securities that we may issue. The senior debt securities will be our senior unsecured obligations and will rank equal in right of payment to all of our other existing and future indebtedness and other liabilities that are not, by
their terms, expressly subordinated in the right of payment to the senior debt securities. The subordinated debt securities will be unsecured obligations and subordinated in right of payment to all of our existing and future senior indebtedness, in
the manner and to the extent described below under Subordination of Subordinated Debt Securities. In addition, any of our secured debt or other secured obligations will be effectively senior to the debt securities to the extent of the
value of the assets securing such debt or other obligation.
The debt securities may be issued in one or more separate series of senior
debt securities or subordinated debt securities. A prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offered debt securities. These terms will include some or all of the
following:
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the title and type of the debt securities;
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any limit on the amount(s) that may be issued;
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the person to whom any interest on the debt securities shall be payable if other than the registered holder;
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the maturity date(s) or the method by which this date or these dates will be determined;
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the interest rate, if any, or the method of computing the interest rate;
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the date or dates from which interest will accrue, or how this date or these dates will be determined, and the interest payment date or dates, if any, and any related record dates;
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the place(s) where payments, if any, will be made on the debt securities and the place(s) where debt securities may be presented for transfer or exchange;
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the period or periods within which, the price or prices at which and the terms and conditions on which we may redeem, or be required to redeem, the debt securities;
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any provisions relating to the convertibility or exchangeability of the debt securities for other debt securities or equity securities;
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any mandatory or optional sinking fund or similar provisions;
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if other than denominations of $1,000 and integral multiples thereof, the denominations in which any debt securities shall be issuable;
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if other than the principal amount, the portion of the principal amount, or the method by which the portion will be determined, of the debt securities that will be payable upon declaration of acceleration of the
maturity of the debt securities;
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if other than U.S. dollars, the foreign currency or units of two or more foreign currencies in which payment of the principal of (and premium, if any) or interest on the debt securities shall be payable;
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if the principal of (and premium, if any) or interest on the debt securities is payable, at our election or election of the holders, in a foreign currency or units of two or more foreign currencies other than that in
which the debt securities are stated to be payable, the period or periods within which, and the terms and conditions, upon which, such election may be made;
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any index used to determine the amount of payment of principal of (and premium, if any) or interest on the debt securities;
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whether the debt securities will be subject to defeasance in advance of the date for redemption or the stated maturity date;
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whether the debt securities will be issued in the form of one or more global securities and, if so, the identity of the depositary for the global security or securities;
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any additional or different events of default and any change in the right of the trustee or the holders to declare principal due and payable;
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in the case of an issue of subordinated debt securities, the subordination provisions, if different from those described under Subordination of Subordinated Debt Securities below;
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any additional or different covenants;
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the form of debt securities;
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any other terms of the debt securities; and
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any applicable guarantees.
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We will have the ability under the indentures to
reopen a previously issued series of debt securities and issue additional debt securities of that series or establish additional terms of that series.
Unless otherwise indicated in the applicable prospectus supplement, the covenants contained in the indentures may not protect holders of the
debt securities in the event of a highly leveraged or other transaction involving us or our subsidiaries that may adversely affect the holders of the debt securities.
Debt securities may be issued under the indentures as original issue discount securities. An original issue discount security is a security,
including any
zero-coupon
security, that under applicable U.S. federal income tax law has a stated redemption price at maturity that exceeds its issue price by more than a
de minimis
amount. If a series of debt securities is issued as original issue discount securities, the special U.S. federal income tax, accounting and other considerations applicable to original issue discount securities will be discussed in the applicable
prospectus supplement.
Holding Company Status.
The debt securities are obligations exclusively of Atlas Air Worldwide Holdings,
Inc., which, as a holding company, has no material assets other than certain investments and its ownership of the
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common stock of its subsidiaries. We will rely entirely upon distributions from our subsidiaries to meet the payment obligations under the debt securities. Our subsidiaries are separate and
distinct legal entities and have no obligation, contingent or otherwise, to pay amounts due under the debt securities or otherwise to make any funds available to us including the payment of dividends or other distributions or the extension of loans
or advances. Furthermore, the ability of our subsidiaries to make any payments to us would be dependent upon the terms of any credit facilities or other agreements of the subsidiaries and upon the subsidiaries earnings, which are subject to
various business risks. In a bankruptcy or insolvency proceeding, claims of holders of the debt securities would be satisfied solely from our equity interests in our subsidiaries remaining after the satisfaction of claims of creditors of the
subsidiaries. Accordingly, the debt securities are effectively subordinated to existing and future liabilities of our subsidiaries to their respective creditors. The debt securities also are effectively subordinated to any secured debt that we incur
to the extent of the value of the assets securing that indebtedness.
Form, Exchange and Transfer
The debt securities will be issuable as registered securities. The ownership or transfer of debt securities will be listed in the security
register described in the applicable indenture.
The indentures provide that debt securities may be issuable in global form which will be
deposited with, or on behalf of, a depositary, identified in an applicable prospectus supplement. If debt securities are issued in global form, one certificate will represent a large number of outstanding debt securities which may be held by
separate persons, rather than each debt security being represented by a separate certificate.
If the purchase price, or the principal of,
or any premium or interest on any debt securities is payable in, or if any debt securities are denominated in, one or more foreign currencies, the restrictions, elections, U.S. federal income tax considerations, specific terms and other information
will be set forth in the applicable prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement, debt
securities denominated in U.S. dollars will be issued only in denominations of $1,000 and integral multiples thereof.
Debt securities may
be presented for registration of transfer with the applicable form of transfer duly executed, at the office of the Security Registrar, as defined in the applicable indenture, without service charge and upon payments of any taxes and other
governmental charges as described in the applicable indenture. This registration of transfer or exchange will be effected upon the Security Registrar being satisfied with the documents of title and identity of the person making the request.
A debt security in global form may not be transferred except as a whole by or between the depositary for the debt security and any of its
nominees or successors. If any debt security of a series is issuable in global form, the applicable prospectus supplement will describe:
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any circumstances under which beneficial owners of interests in that global debt security may exchange their interests for definitive debt securities of that series of like tenor and principal amount in any authorized
form and denomination,
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the manner of payment of principal, premium and interest, if any, on that global debt security, and
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the specific terms of the depositary arrangement with respect to that global debt security.
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Payment and
Paying Agents
Unless otherwise specified in an applicable prospectus supplement, we will pay principal, any premium and interest on
debt securities at the office of the paying agents we have designated, except that we may pay interest by check mailed to, or wire transfer to the account of, the holder. Unless otherwise specified in any applicable prospectus supplement, payment of
any installment of interest on debt securities will be made to the person in whose name the debt security is registered at the close of business on the record date for this interest payment.
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The paying agents outside the United States initially appointed by us for a series of debt
securities will be named in the applicable prospectus supplement. In addition, we will be required to maintain at least one paying agent in each place of payment for the series.
Consolidation, Merger or Conveyance
We
have the ability to merge or consolidate with, or convey, transfer or lease all or substantially all of our property, to another corporation, provided that:
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in the case we consolidate with or merge into another corporation or convey, transfer or lease our properties and assets substantially as an entirety to any person, the corporation formed by such consolidation or into
which we are merged or the person which acquires by conveyance or transfer, or which leases, our properties and assets substantially as an entirety is a corporation organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and expressly assumes, by a supplemental indenture, executed and delivered to the trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the securities and the
performance and observance of every covenant in the indenture on the part of us to be performed or observed;
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immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of ours or a subsidiary as a result of such transaction as having been incurred by us or such subsidiary at
the time of such transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, has happened and is continuing; and
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we have delivered to the applicable trustee an officers certificate and an opinion of counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture complies with all requirements of the applicable indenture and that all conditions precedent to the transaction have been complied with.
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Events of Default
The following are
events of default with respect to any series of debt securities issued:
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default in the payment of any interest upon any security of that series when it becomes due and payable, and continuance of such default for a period of 30 days;
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default in the payment of the principal of (or premium, if any, on) any security of that series at its maturity;
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default in the deposit of any sinking fund payment, when and as due by the terms of any security of that series;
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default in the performance, or breach, of any covenant or warranty in the indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in the indenture specifically dealt with
or which has expressly been included in the indenture solely for the benefit of a series of securities other than the series in respect of which the event of default is being determined), and continuance of such default or breach for a period of 60
days after there has been given a written notice, by registered or certified mail, to us by the trustee or to us and the trustee by the holders of at least 25% in principal amount of the outstanding securities of that series, specifying such default
or breach and requiring it to be remedied;
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a default under any bond, debenture, note or other evidence of or agreement for indebtedness by us (including a
default with respect to securities of any series other than that series) or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by us
(including the indenture), whether such
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indebtedness now exists or shall hereafter be created, and either (1) such default results from the failure to pay the aggregate outstanding principal of such indebtedness in excess of
$75,000,000 at the final stated maturity of such indebtedness or (2) such default results in such indebtedness in an aggregate principal amount of $75,000,000 or more becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, in each case, without such indebtedness having been discharged or such acceleration having been cured, rescinded or annulled, within a period of 30 business days after there shall have been given, by
registered or certified mail, to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding securities of that series;
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specified events of bankruptcy, insolvency or reorganization; or
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any other events of default provided with respect to debt securities of that series.
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If an
event of default occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare each debt security of that series due and payable immediately by a
notice in writing to us, and to the applicable trustee if given by holders. If an event of default occurs because of specified events of bankruptcy, insolvency or reorganization, the principal amount of each series of debt securities will be
automatically accelerated, without any action by the trustee or any holder thereof.
A holder of the debt securities of any series will
only have the right to institute a proceeding under the applicable indenture or to seek other remedies if:
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the holder has given written notice to the applicable trustee of a continuing event of default;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request;
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these holders have offered indemnity reasonably satisfactory to the applicable trustee to institute proceedings as trustee;
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the applicable trustee does not institute a proceeding within 60 days; and
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the applicable trustee has not received written directions inconsistent with the request from the holders of a majority of the principal amount of the outstanding debt securities of that series during that 60 day
period.
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We will annually file statements with the applicable trustee regarding our compliance with the covenants in the
applicable indenture. The applicable trustee will generally give the holders of debt securities notice within 90 days after the trustee has gained knowledge of the occurrence of an event of default.
Subordination of Subordinated Debt Securities
The indebtedness evidenced by the subordinated debt securities will be subordinated and junior in right of payment to the extent set forth in
the subordinated indenture to the prior payment in full of amounts then due on all senior indebtedness. No payment shall be made on the subordinated debt securities, including by way of redemption, purchase, or in any other manner, if the
subordinated trustee shall have received notice from us or any senior lender, that (i) there exists a default which shall be continuing in the payment of principal of, or premium, if any, or interest on any senior indebtedness, beyond any
applicable grace period with respect thereto, or (ii) there exists a default (other than a default specified in clause (i) above) with respect to any senior indebtedness which shall be continuing; provided, however, that no notice given
with respect to one or more defaults of the type specified in clause (ii) shall suspend for longer than 179 days from the date of such notice any payment on subordinated debt securities that has become due, and only one such notice may be given
during any
360-day
period.
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Upon any distribution of our assets or any liquidation, dissolution or other
winding-up
of AAWW whether voluntary or involuntary, or in bankruptcy or insolvency, all principal of, premium, if any, and interest due upon all senior indebtedness must be paid in full before the holders of the
subordinated debt securities or the subordinated trustee are entitled to receive or retain any assets so distributed in respect of the subordinated debt securities. By reason of this provision, in the event of insolvency, holders of the subordinated
debt securities may recover less, ratably, than our other creditors, including holders of senior indebtedness.
Subject to payment in full
of all our senior indebtedness, the rights of holders of the subordinated debt securities will be subrogated to the rights of holders of senior indebtedness to receive payments or distributions of our cash, property or securities applicable to
senior indebtedness.
The subordinated indenture places no limitation on the amount of additional senior indebtedness that may be incurred
by us. We expect from time to time to incur additional indebtedness constituting senior indebtedness. As of March 31, 2017, the amount of our senior indebtedness was approximately $1,980 million, including the impact of unamortized
discount.
Waiver, Modifications and Amendment
The holders of a majority of the principal amount of the outstanding debt securities of any particular series may, on behalf of the holders of
all debt securities of the series, waive past defaults with respect to that particular series, except for:
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the payment of the principal of (or premium, if any) or interest on any security of such series; or
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defaults relating to any covenants of the applicable indenture which cannot be changed without the consent of each holder of a debt security affected by the change.
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The holders of a majority in aggregate principal amount of the outstanding debt securities of each series affected may, on behalf of the
holders of all debt securities of the series, waive our compliance with some of the restrictive provisions of the applicable indenture.
We and each trustee may amend the applicable indenture with the consent of the holders of a majority of the principal amount of the
outstanding debt securities of each series issued under such indenture that is affected. However, without the consent of each directly affected holder, such changes shall not include the following with respect to debt securities held by a
non-consenting
holder:
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change the stated maturity of, the principal of, or any installment of principal of or interest on, any security, or reduce the principal amount, the rate of interest or any premium payable upon the redemption, or
reduce the amount of the principal of an original issue discount security due and payable upon a declaration of acceleration of maturity, or change any place of payment where, or the coin or currency in which, any security or any premium or the
interest is payable, or impair the right to institute suit for the enforcement of any payment on or after the stated maturity (or, in the case of redemption, on or after the redemption date);
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reduce the percentage in principal amount of the outstanding securities of any series, the consent of whose holders is required for any such supplemental indenture, or the consent of whose holders is required for any
waiver of compliance with certain provisions of the applicable indenture or certain defaults provided for in the indenture; or
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modify any of the above requirements or the ability to waive certain past defaults or covenants, except to increase any percentage or to provide that certain other provisions of the applicable indenture cannot be
modified or waived without the consent of the holder of each outstanding security affected.
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For purposes of computing the
required consents referred to above, the aggregate principal amount of any outstanding debt securities not payable in U.S. dollars is the amount of U.S. dollars that could be obtained for
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this principal amount based on the market rate of exchange for the applicable foreign currency or currency unit as determined by the applicable trustee, upon direction, in accordance with the
terms of the applicable indenture.
We and the trustee may amend the applicable indenture without the consent of the holders for any of
the following purposes:
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to evidence the succession of another person succeeding us and the assumption by any such successor of our covenants in the applicable indenture and in the debt securities
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to add to our covenants for the benefit of the holders of all or any series of debt securities (and if such covenants are to be for the benefit of less than all series of debt securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender any right or power conferred upon us in the applicable indenture;
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to add any additional events of default with respect to all or any series of debt securities (and if such events of default are to be for the benefit of less than all series of debt securities, stating that such events
of default are expressly being included solely for the benefit of such series);
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to add to or change any of the provisions of the applicable indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities in uncertificated form (provided that the uncertificated
notes are issued in registered form for purposes of Section 163(f) of the U.S. Internal Revenue Code of 1986 (as amended));
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to change or eliminate any of the provisions of the applicable indenture, provided that any such change or elimination shall become effective only when there is no security outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of such provision;
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to make a change to the debt securities of any series that does not adversely affect the rights of any holder of the debt securities of such series;
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to establish the form or terms of debt securities of any series as permitted by the applicable indenture;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the debt securities of one or more series or to add to or change any of the provisions of the applicable
indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one trustee;
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to cure any ambiguity, to correct or supplement any provision therein which may be defective or inconsistent with any other provision in the applicable indenture, or to make any other provisions with respect to matters
or questions arising under the applicable indenture, provided such action shall not adversely affect the interests of the holders of debt securities of any series in any material respect;
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to comply with any requirement of the SEC in order to effect or maintain the qualification of the applicable indenture under the Trust Indenture Act of 1939, as amended; or
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to conform the applicable indenture or the debt securities to the description thereof in the related prospectus, offering memorandum or disclosure document.
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Defeasance and Covenant Defeasance
Unless otherwise specified in the applicable prospectus supplement relating to a series of debt securities, subject to certain conditions, we
may elect either:
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defeasance for a series of debt securities, whereby we are discharged from any and all obligations with respect to the debt securities, except as may be otherwise provided in the applicable indenture; or
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covenant defeasance for a series of debt securities, whereby we are released from our obligations with respect to certain covenants.
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We may do so by depositing with the trustee money, and/or certain government securities which
through the payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal and any premium and interest on the applicable series of debt securities, and any mandatory sinking fund or
analogous payments on their scheduled due dates. This type of a trust may only be established if, among other things, we have delivered to the applicable trustee an opinion of counsel meeting the requirements set forth in the applicable indenture.
Governing Law
The indentures and
the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Information Concerning the Trustees
Wilmington Trust, National Association is the trustee under the Senior Indenture.
The indentures contain certain limitations on the right of the trustees, should they become a creditor of the Company, to obtain payment of
claims in certain cases, or to realize for their own account on certain property received in respect of any such claim as security or otherwise. We may, from time to time, borrow from or maintain deposit accounts and conduct other banking
transactions with the trustees or their respective affiliates in the ordinary course of business.
We may evidence each series of debt
securities we will issue by an indenture that we enter into with a trustee. We will indicate the name and address of the trustee, if applicable, in the prospectus supplement relating to the particular series of debt securities being offered. The
prospectus supplement for debt securities will describe any material relationships we may have with the trustee.
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DESCRIPTION OF CAPITAL STOCK
The following description sets forth certain general terms and provisions of the common stock and preferred stock to which any prospectus
supplement may relate.
The following description summarizes important terms of our capital stock. Because it is only a summary, it does
not contain all the information that may be important to you. This description is in all respects subject to and qualified in its entirety by reference to: (i) our certificate of incorporation, which is filed as an exhibit to our Current Report
on Form
8-K
dated February 16, 2001 (filed with the SEC on February 21, 2001), as amended by the certificate of amendment of our certificate of incorporation, which is filed as an exhibit to our
Quarterly Report on Form
10-Q
for the quarter ended September 30, 2016 (filed with the SEC on November 3, 2016), (ii) our
by-laws,
as amended and restated as
of September 19, 2014, as further amended as of December 12, 2016 (which we refer to as our
by-laws),
which are filed as an exhibit to our Current Report on Form
8-K
dated December 12, 2016 (filed with the SEC on December 15, 2016), (iii) the certificate of designation relating to each series of preferred stock, which will be filed with the SEC in connection
with an offering of such series of preferred stock and (iv) the relevant portions of the Delaware General Corporation Law.
Our
authorized capital stock consists of 100,000,000 shares of common stock, $0.01 par value, and 10,000,000 shares of preferred stock, $1.00 par value.
Common Stock
General.
As of
April 28, 2017, there were 25,262,899 shares of common stock outstanding. There were 49 stockholders of record of our common stock on such date.
Voting Rights.
The holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a
vote of the stockholders, including the election of directors, and they do not have cumulative voting rights. Accordingly, the holders of a majority of the shares of common stock entitled to vote in any election of directors can elect all of the
directors standing for election, if they so choose. Foreign Ownership Restrictions below contains a description of certain restrictions on voting by stockholders who are not U.S. citizens, as defined by applicable laws and
regulations. Please see Foreign Ownership Restrictions for additional information on the foreign ownership restrictions applicable to the ownership of our shares by
non-U.S.
citizens.
Dividends.
Subject to preferences that may be applicable to any then outstanding preferred stock, holders of our common stock are
entitled to receive ratably those dividends, if any, as may be declared by the board of directors out of legally available funds.
Preemptive Rights.
Holders of our common stock have no preemptive or conversion rights or other subscription rights and there are no
redemption or sinking fund provisions applicable to our common stock.
Assessment.
All outstanding shares of our common stock are
fully paid and nonassessable.
Preferred Stock
As of the date of this prospectus, 10,000,000 shares of undesignated preferred stock are authorized, none of which are outstanding. The board
of directors has the authority, without further action by the stockholders, to issue from time to time the undesignated preferred stock in one or more series and to fix the number of shares, designations, preferences, powers, and relative,
participating, optional, or other special rights and the qualifications or restrictions thereof. The preferences, powers, rights, and restrictions of different series of preferred stock may differ with respect to dividend rates, amounts payable on
liquidation, voting rights, conversion rights, redemption provisions, sinking fund provisions, purchase funds, and other matters. The
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issuance of preferred stock could decrease the amount of earnings and assets available for distribution to holders of our common stock or adversely affect the rights and powers, including voting
rights, of the holders of our common stock and may have the effect of delaying, deferring or preventing a change in control of our company.
Certain
Anti-Takeover Provisions of our Certificate of Incorporation and
By-Laws
and Delaware Law
Some
provisions of Delaware law and our certificate of incorporation and
by-laws
contain provisions that could make the following transactions more difficult: (i) acquisition of us by means of a tender offer;
(ii) acquisition of us by means of a proxy contest or otherwise; or (iii) removal of our incumbent officers and directors. These provisions, summarized below, are intended to encourage persons seeking to acquire control of us to first
negotiate with our board of directors. These provisions also serve to discourage hostile takeover practices and inadequate takeover bids.
Issuance of Preferred Stock.
As noted above, our board of directors, without stockholder approval, has the authority under our
certificate of incorporation to issue preferred stock with rights superior to the rights of the holders of common stock. As a result, preferred stock could be issued quickly and easily, could adversely affect the rights of holders of common stock
and could be issued with terms calculated to delay or prevent a change in control or make removal of management more difficult.
Stockholder Meetings.
A majority of our board of directors, the chairman of the board or the chief executive officer may call special
meetings of stockholders.
Requirements for Advance Notification of Stockholder Nominations and Proposals.
Our
by-laws
contain advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of our board of
directors or a committee thereof.
Delaware Anti-Takeover Statute.
We are subject to Section 203 of the Delaware General
Corporation Law, which, subject to certain exceptions, prohibits persons deemed interested stockholders from engaging in a business combination with a Delaware corporation for three years following the date these persons
become interested stockholders, unless the business combination is approved in a prescribed manner. Generally, an interested stockholder is an entity or person who, together with affiliates and associates, owns, or within three years
prior to the determination of interested stockholder status did own, 15% or more of a corporations voting stock. Generally, a business combination includes a merger, asset or stock sale, or other transaction resulting in a
financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors.
The provisions of Delaware law and our certificate of incorporation and
by-laws
could have the effect
of discouraging others from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. Such provisions
may also have the effect of preventing changes in our management. It is possible that these provisions could make accomplishing transactions that stockholders may otherwise deem to be in their best interests more difficult.
Limitations on Liability and Indemnification of Officers and Directors
Our certificate of incorporation limits the liability of our directors to the fullest extent permitted by the Delaware General Corporation Law
and our
by-laws
provide that we will indemnify our directors and officers to the fullest extent permitted by that law.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare Shareowner Services.
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NASDAQ Global Select Market
Our common stock is listed on The NASDAQ Global Select Market under the symbol AAWW.
Foreign Ownership Restrictions
Under
federal law and the Department of Transportation requirements, we must be owned and actually controlled by citizens of the United States as that term is defined in 49 U.S.C.§ 40102 (a)(15). In this regard, our President and at least
two-thirds
of our Board and officers must be U.S. citizens, at least 75% of our outstanding voting common stock must be owned and controlled, directly or indirectly, by persons who are citizens of the
United States, and not more than 25% of our outstanding voting common stock may be owned and controlled, directly or indirectly, by persons who are not citizens of the United States. We believe that on the date of this prospectus
we are in compliance with these requirements.
Under our
by-laws,
consistent with U.S. law, there
is a separate stock record, designated the Foreign Stock Record, for the registration of Voting Stock that is Beneficially Owned by persons who are not citizens of the United States. Voting Stock means all outstanding shares
of our capital stock that we may issue from time to time which, by their terms, may vote for the election of directors, except shares of preferred stock that are entitled to vote for directors solely as a result of the failure of AAWW to pay
dividends or other breach of the terms of such preferred stock. Beneficially Owned refers to owners of our securities who, directly or indirectly, have or share voting power and/or investment power. Our certificate of incorporation and
by-laws
prohibit persons who are not citizens of the United States from voting their beneficially owned shares of common stock unless the shares are registered in the Foreign Stock Record.
At no time will ownership of our shares of common stock representing more than the Maximum Percentage be registered in the Foreign
Stock Record. Maximum Percentage, which currently is 25%, refers to the maximum percentage of voting power of Voting Stock which may be voted by, or at the direction of,
non-U.S.
citizens without
violating applicable statutory, regulatory or interpretative restrictions or adversely affecting the operating certificates or authorities of Atlas or Polar Air Cargo Worldwide, Inc., a subsidiary in which Atlas has a 51% economic interest and 75%
voting interest. If we find that the combined voting power of Voting Stock then registered in the Foreign Stock Record exceeds the Maximum Percentage, the registration of such shares will be removed from the Foreign Stock Record, in reverse
chronological order based on the date of registration, and the voting rights of such Voting Stock removed from the Foreign Stock Record will be automatically suspended, sufficient to reduce the combined voting power of the shares so registered to an
amount not in excess of the Maximum Percentage. It is the duty of each stockholder who is not a citizen of the United States to register his, her or its equity securities on our Foreign Stock Record.
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PLAN OF DISTRIBUTION
General.
We may sell the securities offered hereby directly to one or more purchasers, through agents, or through underwriters or
dealers designated from time to time. The distribution of securities may be effected from time to time in one or more transactions at a fixed price or prices (which may be changed from time to time), at market prices prevailing at the times of sale,
at prices related to these prevailing market prices or at negotiated prices. The applicable prospectus supplement will describe the terms of the offering of the securities, including:
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the terms of the securities to which such prospectus supplement relates;
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the name or names of any underwriters, if any;
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the purchase price of the securities and the proceeds we will receive from the sale;
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any underwriting discounts and other items constituting underwriters compensation; and
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any discounts or concessions allowed or reallowed or paid to dealers.
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Underwriters named in
the prospectus supplement, if any, are only underwriters of the securities offered with the prospectus supplement.
Sales Directly to
Purchasers.
We may enter into agreements directly with one or more purchasers. Such agreements may provide for the sale of securities at a fixed price, based on the market price of the securities or otherwise.
Use of Underwriters and Agents.
If underwriters are used in the sale of securities, they will acquire the securities for their own
account and may resell them from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The securities may be offered to the public through underwriting syndicates represented
by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by the prospectus supplement. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may change from time to time.
Securities may be sold directly to or through agents
from time to time. Any agent involved in the offering and sale of securities will be named and any commissions paid to the agent will be described in the prospectus supplement. Unless the prospectus supplement states otherwise, any agent will act on
a best-efforts basis for the period of its appointment. Agents or underwriters may be authorized to solicit offers by certain types of institutional investors to purchase securities at the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The conditions to these contracts and the commissions paid for solicitation of these contracts will be described in the prospectus
supplement. We may engage in at the market offerings only of our common stock. An at the market offering is defined in Rule 415(a)(4) under the Securities Act, as an offering of equity securities into an existing trading
market for outstanding shares of the same class at other than a fixed price.
Deemed Underwriters.
In connection with the sale of
the securities offered with this prospectus, underwriters, dealers or agents may receive compensation from us or from purchasers of the securities for whom they may act as agents, in the form of discounts, concessions or commissions. The
underwriters, dealers or agents which participate in the distribution of the securities may be deemed to be underwriters under the Securities Act, and any discounts or commissions received by them and any profit on the resale of the securities
received by them may be deemed to be underwriting discounts and commissions under the Securities Act. Anyone deemed to be an underwriter under the Securities Act may be subject to statutory liabilities, including Sections 11, 12 and 17 of the
Securities Act and Rule
10b-5
under the Exchange Act.
Derivative Transactions.
We may
enter into derivative transactions with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions from time to time. If the applicable
18
prospectus supplement indicates, in connection with those derivative transactions, such third parties (or affiliates of such third parties) may sell securities covered by this prospectus and the
applicable prospectus supplement, including in short sale transactions. If so, such third parties (or affiliates of such third parties) may use securities pledged by us or borrowed from us or any securityholder or others to settle those sales or to
close out any related open borrowings of securities, and may use securities received from us in settlement of those derivative transactions to close out any related open borrowings of securities. The third parties (or affiliates of such third
parties) in such sale transactions by us will be underwriters and will be identified in an applicable prospectus supplement (or a post-effective amendment). We may also sell securities under this prospectus upon the exercise of rights that may be
issued to our securityholders. We may loan or pledge securities to a financial institution or other third party that in turn may sell the securities using this prospectus and an applicable prospectus supplement. Such financial institution or third
party may transfer its economic short position to investors in our securities or in connection with a simultaneous offering of other securities offered by this prospectus.
Indemnification and Other Relationships.
We may provide agents and underwriters with indemnification against certain civil liabilities,
including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities. Agents and underwriters may engage in transactions with, or perform services for, us
in the ordinary course of business.
Listing of Securities.
Except as indicated in the applicable prospectus supplement, the
securities are not expected to be listed on a securities exchange or market, except for the common stock, which is listed on The NASDAQ Global Select Market, and any underwriters or dealers will not be obligated to make a market in the securities.
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LEGAL MATTERS
In connection with particular offerings of our securities in the future, and unless otherwise indicated in the applicable prospectus
supplement, the validity of those securities will be passed upon for us by Cravath, Swaine & Moore LLP, New York, New York. Additional legal matters may be passed on for us or any underwriters, dealers or agents by counsel that we will name
in the applicable prospectus supplement.
EXPERTS
The financial statements and managements assessment of the effectiveness of internal control over financial reporting (which is included
in Managements Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2016 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have filed a registration statement with the SEC under the Securities Act. This prospectus, which is a part of the registration statement,
does not contain all the information contained in the registration statement; certain items are contained in exhibits to the registration statement, as permitted by the rules and regulations of the SEC. Statements that we make in this prospectus
about the content of any contract, agreement or other document are not necessarily complete. With respect to each document filed as an exhibit to the registration statement, we refer you to the exhibit for a more complete description of the matter
involved, and each statement that we make is qualified in its entirety by such reference.
In particular, the contracts, agreements or
other documents included as exhibits to this registration statement or incorporated by reference are intended to provide you with information regarding their terms and not to provide any other factual or disclosure information about us or the other
parties to the documents. The documents contain representations and warranties by each of the parties to the applicable document. These representations and warranties have been made solely for the benefit of the other parties to the applicable
document and:
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should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;
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have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable document, which disclosures are not necessarily reflected in the document;
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may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and
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were made only as of the date of the applicable document or such other date or dates as may be specified in the document and are subject to more recent developments.
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We incorporate by reference in this prospectus the documents listed below and any future filings we make with the Securities and Exchange
Commission, or the SEC, under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the termination of the offering under this prospectus and
any applicable prospectus supplement. Any statement in a document incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent a statement contained in this prospectus or any subsequently filed document that
is incorporated by reference in this prospectus modifies or supersedes such statement. However, any information contained herein shall modify or supersede information contained in documents we filed with the SEC before the date of this prospectus.
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We incorporate by reference in this prospectus the documents set forth below that have been
previously filed with the SEC:
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our Annual Report on Form
10-K
for the year ended December 31, 2016 filed with the SEC on February 23, 2017;
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our Quarterly Report on Form
10-Q
for the fiscal quarter ended March 31, 2017, filed with the SEC on May 3, 2017; and
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the description of our common stock, par value $0.01 per share, which is contained in our registration statement on Form
8-A,
filed with the SEC on June 19, 2001 pursuant to
Section 12 of the Exchange Act, including any subsequent amendments or reports filed for the purpose of updating that description.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available over the
Internet at the SECs web site at
http://www.sec.gov
.
You may also read and copy any document we file with the SEC at its public reference facility:
Public Reference Room
100 F
Street, N.E.
Room 1580
Washington, DC 20549
You may
also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC, 100 F Street, N.E., Room 1580, Washington, DC 20549. Please call
1-800-SEC-0330
for further information on the operations of the public reference facility and copying charges.
We will furnish without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of the
information that has been incorporated into this prospectus by reference but not delivered with the prospectus (except exhibits, unless they are specifically incorporated into this prospectus by reference). You should direct any requests for copies
to:
Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase,
New York 10577
Ph: (914)
701-8000
Attention: Adam R. Kokas, Executive Vice President,
General Counsel, Secretary and Chief Human Resources Officer
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
.
The following table sets forth the various expenses in connection with the sale and distribution of the securities being registered. We will
bear all of the expenses shown below. All amounts are estimated.
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Securities and Exchange Commission registration fee
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$
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(1)
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Printing expenses
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(2)
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Legal fees and expenses
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(2)
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Accounting fees and expenses
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(2)
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Transfer agent fees and expenses
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(2)
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Miscellaneous
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(2)
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Total
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$
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(2)
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(1)
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Deferred in reliance upon Rule 456(b) and Rule 457(r).
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(2)
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As the amount of the securities to be issued, offered and sold pursuant to this Registration Statement is indeterminate, the actual amount of such fees and expenses cannot be estimated at this time. The applicable
prospectus supplement will set forth the estimated aggregate amount of expenses payable with respect to any offering of securities.
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Item 15.
Indemnification of Directors and Officers
.
Section 145 of the Delaware General Corporation Law (DGCL) provides that a corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative (other than an action by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in
a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the persons conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys fees) actually and reasonably incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of
the directors duty of loyalty to the corporation or its
II-1
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to
unlawful payment of dividends and unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived an improper personal benefit.
Our certificate of incorporation provides that our directors shall not be liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director except to the extent that exculpation from liabilities is not permitted under the DGCL as in effect at the time such liability is determined. Our certificate of incorporation further provides that we shall indemnify our
directors and officers to the fullest extent permitted by the DGCL.
We have obtained director and officer liability insurance under
which, subject to the limitations of such policies, coverage will be provided (a) to our directors and officers against loss arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or officer,
including claims relating to public securities matters and (b) to us with respect to payments which may be made by us to these officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.
We may enter into indemnification agreements with our directors and certain of our officers. The indemnification agreements provide our
directors and certain of our officers with further indemnification to the maximum extent permitted by the DGCL.
Item 16.
Exhibits and
Financial Statement Schedules
.
The list of exhibits is set forth beginning on page
II-7
of this Registration Statement and is incorporated herein by reference.
Item 17.
Undertakings
.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement,
provided, however
that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities and Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
II-2
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as
amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or
prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free
writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned Registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the
undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) any other
communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(6) That, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
II-3
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
(8) The undersigned registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) or Section 310 of the Trust Indenture Act, as amended, in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture
Act, as amended.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form
S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Purchase, State of New York, on
the 16th day of May, 2017.
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ATLAS AIR WORLDWIDE HOLDINGS, INC.,
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By:
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/s/ William J. Flynn
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Name: William J. Flynn
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Title: President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being a director or officer of Atlas Air Worldwide Holdings, Inc., a Delaware
corporation (the Company), hereby constitutes and appoints William J. Flynn, Spencer Schwartz and Adam R. Kokas and each of them, his true and lawful
attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign the
Companys Registration Statement on Form
S-3,
and any and all amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the SEC, granting unto said
attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done so that such registration statement shall comply with the Securities Act and the applicable rules and regulations adopted or promulgated thereunder, as fully and to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or any of them or their substitute or resubstitute, may lawfully do or cause to be
done by virtue hereof.
* * * *
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and
on the dates indicated
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Signature
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Capacity
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Date
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/s/ Frederick McCorkle
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Chairman of the Board, Director
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May 16, 2017
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Frederick McCorkle
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/s/ William J. Flynn
William J. Flynn
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President, Chief Executive Officer and Director (Principal Executive Officer)
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May 16, 2017
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/s/ Spencer Schwartz
Spencer Schwartz
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Executive Vice President and
Chief Financial Officer
(Principal
Financial Officer)
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May 16, 2017
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/s/ Keith H. Mayer
Keith H. Mayer
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Vice President and Corporate Controller
(Principal Accounting Officer)
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May 16, 2017
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/s/ Robert F. Agnew
Robert F. Agnew
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Director
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May 16, 2017
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II-5
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Signature
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Capacity
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Date
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/s/ Timothy J. Bernlohr
Timothy J. Bernlohr
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Director
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May 16, 2017
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/s/ Charles F. Bolden, Jr.
Charles F. Bolden, Jr.
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Director
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May 16, 2017
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/s/ James S. Gilmore III
James S. Gilmore III
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Director
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May 16, 2017
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/s/ Bobby J. Griffin
Bobby J. Griffin
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Director
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May 16, 2017
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/s/ Carol B. Hallett
Carol B. Hallett
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Director
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May 16, 2017
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/s/ Duncan J. McNabb
Duncan J. McNabb
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Director
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May 16, 2017
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/s/ John K. Wulff
John K. Wulff
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Director
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May 16, 2017
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II-6
EXHIBIT INDEX
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Exhibit
Number
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Description
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1.1*
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Form of Underwriting Agreement.
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3.1
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Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form 8-K dated February 16, 2001 (File
No. 0-25732)).
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3.1.1
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Atlas Air Worldwide Holdings, Inc. Certificate of Amendment of Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 to the Companys Quarterly Report on Form
10-Q
for
the quarter ended September 30, 2016 (File
No. 001-16545)).
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3.2
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By-laws
of the Company, Amended and Restated as of September 19, 2014, as Further Amended as of December 12, 2016 (Incorporated by reference to Exhibit 3 to the Companys
Current Report on Form
8-K
dated December 12, 2016 (File
No. 001-16545)).
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3.3*
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Certificate of designations, preferences and rights with respect to any preferred stock issued hereunder.
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4.1
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Senior Indenture, dated as of June 3, 2015, between the Company, as Issuer, and Wilmington Trust, National Association, as Trustee (Incorporated by reference to Exhibit 4.1 to the Companys Current Report on Form 8-K dated
June 3, 2015 (File
No. 001-16545)).
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4.2
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First Supplemental Indenture, dated as of June 3, 2015, between the Company, as Issuer, and Wilmington Trust, National Association, as Trustee (Incorporated by reference to Exhibit 4.2 to the Companys Current Report on
Form 8-K dated June 3, 2015 (File
No. 001-16545)).
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4.3
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Form of Subordinated Indenture (Incorporated by reference to Exhibit 4.2 to the Companys Registration Statement on Form
S-3
dated May 27, 2015 (Registration
No. 333-204479)).
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5.1**
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Opinion of Cravath, Swaine & Moore LLP.
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12.1**
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Statement regarding computation of ratio of earnings to fixed charges and preferred stock dividends.
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23.1**
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Consent of Cravath, Swaine & Moore LLP (included in Exhibit 5.1).
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23.2**
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Consent of PricewaterhouseCoopers LLP.
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24.1**
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Power of Attorney (included in Part II of this registration statement).
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25.1**
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Form
T-1
Statement of Eligibility of Trustee under Trust Indenture Act of 1939, as amended, of the Trustees to be designated with respect to Indentures.
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*
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To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a Current Report on Form
8-K
and incorporated herein by
reference.
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II-7
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